The National Health Law Program (NHeLP) has filed a friend of the court (amicus curiae) brief with the U.S. Supreme Court for Zubik v. Burwell, whereby the Court will decide whether non-profit employers are able to deny their employees access to contraceptive services on religious grounds. The NHeLP brief was joined by the American Public Health Association, National Hispanic Medical Association, National Family Planning & Reproductive Health Association, National Women's Health Network, Ipas, Asian Americans Advancing Justice | AAJC, Asian Americans Advancing Justice–Los Angeles, Asian & Pacific Islander American Health Forum, Black Women's Health Imperative, and Christie's Place, and it urges the Court to uphold the contraceptive coverage requirements contained in the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). The Supreme Court will hear the case on March 23, 2016.

Impact of cost-sharing. The ACA’s requirements to provide certain preventive services without cost-sharing are found in section 2713. "The ACA seeks to increase access to health care by removing cost-barriers," said Dipti Singh, NHeLP reproductive health attorney and author of the brief. "Health insurance coverage of contraception–critical to the health and well-being of women–without cost-sharing is essential to achieving that goal."

Under federal rules, the non-profit employers before the Court are already allowed to opt-out of offering health insurance plans that cover contraception. NHeLP says that the employers are still unsatisfied, because they argue that, although federal law allows them to opt-out, it still ensures that their employees have access to contraception without cost-sharing, and, thus, it violates their religious beliefs through its notice requirements by effectively forcing them to facilitate the provision of insurance coverage for contraceptive services.

"The contraceptive coverage requirement removes financial barriers that prevent too many women from accessing contraception," said Susan Berke Fogel, NHeLP's director of reproductive health. "Allowing employers to make reproductive decisions for their employees, robs women of dignity and control over their own lives."

"The Religious Freedom Restoration Act does not entitle employers to impose their own religious beliefs on their employees," said Elizabeth G. Taylor, executive director of NHeLP. "The ACA is intended to improve people's health, and to deny contraceptive coverage to women who work for non-profit employers is to exclude them from critical health benefits and put some women's health at risk."

According to NHeLP's brief, cost is a well-documented barrier to health care access, including contraception–a barrier that NHeLP says Congress sought to remove through the ACA. The ACA's contraceptive coverage requirement is one of many interconnected government strategies that must work together to ensure that all Americans, regardless of their employer or how they receive their insurance coverage, can access the health care services they need, NHeLP continues.

Use of Title X. The employers had apparently argued that one less restrictive way to meet Congress’s goal regarding contraception would be to use Title X, the federal family planning program, to provide contraceptives to employees and dependents who lack coverage. NHeLP argues that Title X is not a substitute for the private health insurance market, however, and it points out that, under federal law, Title X providers must give priority to people from low-income families. Title X was neither designed nor funded, says NHeLP, to absorb unmet needs of people with private health insurance coverage. Title X does serve as a safety net for higher-income people who cannot pay for family planning services if, for example, they must receive those services on a confidential basis. NHeLP adds that, in 2014, 69 percent of Title X clients had incomes at or below the federal poverty level, 91 percent had incomes at or below 250 percent of the federal poverty level, and 54 percent were uninsured.

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